Citation Nr: 0729743
Decision Date: 09/21/07 Archive Date: 10/01/07
DOCKET NO. 03-32 975 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Seattle,
Washington
THE ISSUE
Entitlement to service connection for the residuals of an
injury or injuries to the spine incurred in the line of duty.
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
E. Pomeranz, Counsel
INTRODUCTION
The veteran had active military service from March 1972 to
June 1975.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal of a December 2002 decision letter by the
Department of Veterans Affairs (VA) Regional Office (RO)
located in Seattle, Washington, that denied an application to
reopen a previously denied claim of entitlement to service
connection for residuals of an injury to the spine.
The record reveals that the veteran filed an initial claim
for service connection for residuals of a back injury in
September 1997, which the RO denied by rating decision in
March 1998. The veteran did not perfect an appeal. As
stated above, by a December 2002 decision letter, the RO
denied the veteran's application to reopen his previously
denied claim for service connection for the residuals of a
back injury. However, where a prior claim for service
connection has been denied, and a current claim contains a
different diagnosis (even one producing the same symptoms in
the same anatomic system), a new decision on the merits is
required. See Ephraim v. Brown, 82 F.3d 399, 402 (Fed. Cir.
1996). In this case, there is medical evidence of a
diagnosis of degenerative disc disease of the spine, which
was not of record at the time of the September 1997 RO
decision noted above. Also, it is apparent that the RO
included residuals of an injury to the cervical spine in its
de novo adjudication and denial of the veteran's current
claim and the RO did not previously address this segment of
the spine in its earlier unappealed decision. By a
supplemental statement of the case, the RO denied service
connection for the residuals of an injury to the spine, on
the merits, on the basis that the veteran was intoxicated
and, therefore, not in the line of duty at the time he
sustained the alleged injuries.
In view of the foregoing, the Board concurs with the RO's
finding that the veteran's claim for service connection for
the residuals of an injury to the spine that occurred while
in the line of duty is a new claim and, therefore, must be
considered on a de novo basis, without regard to finality of
the previous determination. Accordingly, the issue before
the Board is styled on the title page.
The Board also notes that in the veteran's September 2003
substantive appeal, he requested a hearing at a local VA
office before a member of the Board. A letter from the RO to
the veteran, dated in April 2007, shows that at that time,
the RO had scheduled the veteran for a hearing before the
Traveling Section of the Board in May 2007. A notation on
the letter reflects that the veteran failed to appear for his
hearing. As he has failed to provide good cause for his
failure to report or request a new hearing, his hearing
request is deemed withdrawn. 38 C.F.R. § 20.704 (2006).
FINDINGS OF FACT
The service medical records show that the veteran sustained a
contusion to the right lateral rib region in an altercation;
there are no findings relating to an injury or disability
involving the back or any part of the spine; there is no
competent evidence of a nexus between a claimed back
disability or residuals of an injury to any part of the spine
and any incident of service, to include remote, minor trauma.
CONCLUSION OF LAW
Residuals of an injury to the spine were not incurred in or
aggravated by active military service, nor may arthritis of
any part of the spine be presumed to have been incurred
therein. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5103,
5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303,
3.307, 3.309 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Veterans Claims Assistance Act of 2000 (VCAA)
The enactment of the VCAA, codified at 38 U.S.C.A. §§ 5102,
5103, 5103A, 5107 (West 2002), significantly changed the law
prior to the pendency of this claim. VA has issued final
regulations to implement these statutory changes. See 38
C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). The VCAA
provisions include an enhanced duty to notify a claimant as
to the information and evidence necessary to substantiate a
claim for VA benefits, and they redefine the obligations of
VA with respect to the duty to assist the appellant with the
claim. In the instant case, the Board finds that VA
fulfilled its duties to the veteran under the VCAA.
Duty to Notify
VA has a duty to notify the veteran of any information and
evidence needed to substantiate and complete a claim. 38
U.S.C.A. §§ 5102, 5103. The Board concludes that the July
2006 letter sent to the veteran by the RO adequately apprised
him of the information and evidence needed to substantiate
the claim. The RO thus complied with VCAA's notification
requirements.
In order to meet the requirements of 38 U.S.C. § 5103(a) and
38 C.F.R. § 3.159(b), VCAA notice must: (1) inform the
claimant about the information and evidence necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request that the
claimant provide any evidence in his possession that pertains
to the claim. Beverly v. Nicholson, 19 Vet. App. 394, 403
(2005) (outlining VCAA notice requirements).
Additionally, during the pendency of this appeal, on March 3,
2006, the Court of Appeals for Veterans' Claims (Court)
issued a decision in Dingess v. Nicholson, 19 Vet. App. 473,
484, 486 (2006), which held that the VCAA notice requirements
of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to
all five elements of a service connection claim. Those five
elements include: (1) veteran status; (2) existence of a
disability; (3) a connection between the veteran's service
and the disability; (4) degree of disability; and (5)
effective date of the disability. The Court held that upon
receipt of an application for a service-connection claim, 38
U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to
review the information and the evidence presented with the
claim and to provide the claimant with notice of what
information and evidence not previously provided, if any,
will assist in substantiating or is necessary to substantiate
the elements of the claim as reasonably contemplated by the
application. Id., at 486. Additionally, this notice must
include notice that a disability rating and an effective date
for the award of benefits will be assigned if service
connection is awarded. Id.
The July 2006 letter from the RO satisfies these mandates.
It informed the veteran about the type of evidence needed to
support his claim, namely, proof of: (a) an injury in
military service or disease that began in or was made worse
during military service, or an event in service causing
injury or disease; (b) a current physical or mental
disability; and (c) a relationship between the current
disability and an injury, disease or event in service. This
correspondence clearly disclosed VA's duty to obtain certain
evidence for the veteran, such as medical records, employment
records and records held by any Federal agency, provided the
veteran gave consent and supplied enough information to
enable their attainment. It made clear that although VA
could assist the veteran in obtaining these records, he
carried the ultimate burden of ensuring that VA received all
such records. This letter additionally informed him about
how VA determines effective dates and disability ratings, as
required by Dingess. It also specifically asked the veteran
to provide VA with any other supporting evidence or
information in his possession. The Board thus finds that the
veteran was effectively informed to submit all relevant
evidence in his possession, and that he received notice of
the evidence needed to substantiate his claim, the avenues by
which he might obtain such evidence, and the allocation of
responsibilities between himself and VA in obtaining such
evidence. See Beverly, 19 Vet. App. at 403; see also
Mayfield v. Nicholson, 19 Vet. App. 103, 109-12 (2005), rev'd
on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).
The Board also recognizes that, according to Pelegrini v.
Principi, 18 Vet. App. 112, 119-20 (2004), proper VCAA notice
must "precede an initial unfavorable [agency of original
jurisdiction (AOJ)] decision on a service-connection claim."
VA did not provide such notice to the veteran prior to the
December 2002 RO decision letter that is the subject of this
appeal in its July 2006 letter. The United States Court of
Appeals for the Federal Circuit has held that timing-of-
notice errors can be "cured" by notification followed by
readjudication. Mayfield v. Nicholson, 444 F.3d 1328, 133-34
(Fed. Cir. 2006) (Mayfield II). However, in this case, the
veteran's service connection claim was readjudicated in a
June 2006 supplemental statement of the case, before notice
was provided in July 2006. Thus, readjudication was prior to
notification and the timing-of-notice error was not cured.
Therefore, given that VCAA notice did not precede the initial
unfavorable AOJ decision, the Board must presume that the
error was prejudicial, and VA bears the burden of rebutting
said presumption. Sanders v. Nicholson, 487 F.3d 881 (2007)
( recognizing that "VCAA notice errors are reviewed under a
prejudicial error rule" and holding that "all VCAA notice
errors are presumed prejudicial and . . . VA has the burden
of rebutting this presumption"); see also Mayfield v.
Nicholson, 19 Vet. App. 103, 111-16 (2005), rev'd on other
grounds, 444 F.3d 1328 (Fed. Cir. 2006).
In Sanders, the Federal Circuit held that any error by VA in
providing the notice required by 38 U.S.C.A. § 5103(a) and
38 C.F.R. § 3.159(b)(1) is presumed prejudicial and that once
an error is identified by the Veterans Court (Court of
Appeals for Veterans Claims), the burden shifts to VA to
demonstrate that the error was not prejudicial. The Federal
Circuit reversed the Court of Appeals for Veterans Claims'
holding that an appellant before the Court has the initial
burden of demonstrating prejudice due to VA error involving:
(1) providing notice of the parties' respective obligations
to obtain the information and evidence necessary to
substantiate the claim: (2) requesting that the claimant
provide ant pertinent evidence in the claimant's possession;
and (3) failing to provide notice before a decision on the
claim by the agency of original jurisdiction. See also
Simmons v. Nicholson, No. 06-7092 (Fed. Cir. May 16, 2007).
An error "whether procedural or substantive, is prejudicial
when [it] affects a substantial right so as to injure an
interest that the statutory or regulatory provision involved
was designed to protect such that the error affects 'the
essential fairness of the [adjudication].'" Mayfield,
supra, at 116; accord Sanders, supra, ("this opinion does
not . . . change the rule that reversal resulted the
essential fairness of the adjudication to have been
affected"). That is, "the key to determining whether an
error is prejudicial is the effect of the error on the
essential fairness of the adjudication." Id.; accord
Sanders, supra. "[A]n error is not prejudicial when [it]
did not affect 'the essential fairness of the
[adjudication],'" see id., at 121, and non-prejudicial error
may be proven by a showing that "the purpose of [VCAA]
notice was not frustrated, e.g., by demonstrating: (1) that
any defect was cured by actual knowledge on the part of the
claimant, (2) that a reasonable person could be expected to
understand from the [defective] notice what was needed, or
(3) that a benefit could not have been awarded as a matter of
law." Sanders, supra, accord Dalton v. Nicholson, 21 Vet.
App. 23, 30 (2007) (determining that no prejudicial error to
veteran resulted in defective VCAA notice when the veteran,
through his counsel, displayed actual knowledge of the
information and evidence necessary to substantiate his
claim). Accordingly, "there could be no prejudice if the
purpose behind the notice has been satisfied . . . that is,
affording a claimant a meaningful opportunity to participate
effectively in the processing of [the] claim. . . ."
Mayfield, supra, at 128.
In the instant case, any timing deficiency with regard to the
Pelegrini requirement would not have operated to alter the
outcome in the instant case where the preponderance of the
evidence is against the claim for service connection for the
residuals of an injury that occurred while on active duty, to
specifically include a back disability, diagnosed as
degeneration of the lumbar spine, and/or a neck disability,
diagnosed as degenerative disc disease of the cervical spine.
Sanders, supra (recognizing that "a demonstration that the
outcome would not have been different in the absence of the
error would demonstrate that there was no prejudice"). In
view of the foregoing, the Board cannot conclude that this
timing defect in Pelegrini notice affected the essential
fairness of the adjudication, and thus, the presumption of
prejudice is rebutted. Sanders, supra.
The veteran has been provided the opportunity to respond to
VA correspondence and over the course of the appeal has had
multiple opportunities to submit and identify evidence.
Furthermore, he has been provided a meaningful opportunity to
participate effectively in the processing of his claim by VA,
including being afforded the opportunity to present evidence
and argument in support of the claim at a personal hearing at
the RO.
Duty to Assist
VA also has a duty to assist the veteran in obtaining
evidence necessary to substantiate the claim. 38 U.S.C.A. §
5103A(a) ("The Secretary shall make reasonable efforts to
assist a claimant in obtaining evidence necessary to
substantiate the . . . claim"). This duty includes
assisting the veteran in obtaining records and providing
medical examinations or obtaining medical opinions when such
are necessary to make a decision on the claim. 38 U.S.C.A. §
5103A(b), (c), (d) (setting forth Secretary's various duties
to claimant).
VA informed the veteran of its duty to assist in obtaining
records and supportive evidence, but the veteran did not
receive a VA examination for the purposes of deciding this
claim, apparently because the RO did not deem such an opinion
or examination to be "necessary" to render its decision on
the claim. See 38 U.S.C.A. § 5103A(d)(1); accord 38 C.F.R.
3.159(c)(4). 38 U.S.C.A. § 5103A(d)(2) and 38 C.F.R. §
3.159(c)(4) require the Secretary to treat an examination or
opinion as being necessary to make a decision on a claim if,
taking into consideration all information and law or medical
evidence (including statements of the veteran), there is
"(1) competent evidence of a current disability or
persistent or recurrent symptoms of a disability, and (2)
evidence establishing that an event, injury, or disease
occurred in service or establishing certain diseases
manifesting during an applicable presumptive period for which
the claimant qualifies, and (3) an indication that the
disability or persistent or recurrent symptoms of a
disability may be associated with the veteran's service or
with another service-connected disability, but (4)
insufficient competent medical evidence on file for the
Secretary to make a decision on the claim." McLendon v.
Nicholson, 20 Vet. App. 79, 81 (2006); 38 U.S.C.A. §
5103A(d)(2); 38 C.F.R. §. 3.159(c)(4); see Disabled Am.
Veterans v. Sec'y of Veterans Affairs, 419 F.3d 1317, 1318
(Fed. Cir. 2005) (discussing provisions of 38 U.S.C.A. §
5103A(d)); Paralyzed Veterans of Am. v. Sec'y of Veterans
Affairs, 345 F.3d 1334, 1354-56 (2003) (discussing provisions
of 38 C.F.R. § 3.159(c)(4) and upholding this section of the
regulation as consistent with 38 U.S.C.A. § 5103A(d)). An
affirmative answer to these elements results in a necessary
medical examination or opinion; a negative response to any
one element means that the Secretary need not provide such an
examination or solicit such an opinion. See McLendon, supra,
38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4).
Although the evidence of record shows that the veteran
currently has a back or lumbar spine disability and disc
disease of the cervical spine, the record contains no
competent medical opinion linking either disability to the
veteran's active service or any incident thereof, including
an assault. Given the absence of a competent opinion
supporting the contended causal relationship, the number of
years that have elapsed since service and the relatively
minor nature of the injury during service-a contusion to the
right lateral ribs that did not even involve the back or neck
region-the Board finds that VA has no duty to provide an
examination or medical opinion. 38 U.S.C.A. § 5103A(d) (West
2002 & Supp. 2006); 38 C.F.R. § 3.159(c)(4) (2006). See also
McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Wells v.
Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003).
Based on the foregoing, it is the Board's determination that
the VA fulfilled its VCAA duties to notify and to assist the
veteran, and thus, no additional assistance or notification
was required. The veteran has suffered no prejudice that
would warrant a remand, and his procedural rights have not
been abridged. See Bernard v. Brown, 4 Vet. App. 384.
II. Factual Background
The veteran's service medical records are negative for any
complaints or findings of a back or neck disability. In
March 1975, the veteran underwent an Expeditious Discharge
Program (EDP) examination. At that time, the veteran's spine
and other musculoskeletal system were clinically evaluated as
"normal." The records also include a DD Form 261, Report
of Investigation, Line of Duty and Misconduct Status, dated
in June 1975. In the report, it was noted that in May 1975,
the veteran was away from his place of duty without
authorization and was highly intoxicated. He was allegedly
injured when he was kicked and suffered a contusion to the
right lateral ribs. According to the report, the injury that
the veteran received was a direct result of his misconduct
and was not in the line of duty.
In October 1997, the veteran underwent a VA examination. At
that time, he stated that he had back pain. The veteran
indicated that during service, he hit his back when he fell
down some steps and developed immediate back pain. He
further alleged that he was seen at the military clinic,
recovered without being hospitalized, and was subsequently
discharged. According to the veteran, following his
separation from the military, he worked at a furniture
factory but was unable to do any work which required heavy
lifting due to back pain. He denied any cervical pain. Upon
physical examination in October 1997, the veteran's gait was
normal. There were no deformities noted and the back
musculature was not in spasm. There were no areas of
firmness. Forward flexion was to 65 degrees, with pain
beginning at approximately 35 degrees. The veteran dressed
and undressed himself without any problems. There were no
neurological abnormalities. The initial impression was
contusion of the back in 1975. The veteran subsequently had
x-rays taken of his lumbar spine. The x-rays were
interpreted as showing no evidence of spondylolysis of
spondylolisthesis. The vertebral body height and
intervertebral disk spaces were preserved. The impression
was negative lumbar spine plain films. Following the
physical examination and a review of the veteran's x-rays,
the examining physician diagnosed the veteran with chronic
back strain; negative x-rays of the thoracic and lumbar
spine.
In September 2001, the RO received VA Medical Center (VAMC)
outpatient treatment records, from May to September 2001.
The records show that in May 2001, the veteran was
hospitalized for one day for substance abuse. While he was
hospitalized, he was treated for complaints of back pain that
was the result of an exacerbation of a previous injury.
According to the veteran, he slipped on oil and developed
back pain several days earlier. The veteran's gait was slow
but steady. Upon his discharge, the pertinent diagnosis was
chronic recurrent pain in multiple joints, primarily in low
back.
In November 2002, the RO received private medical records,
dated in May 2001. The records show that in May 2001, the
veteran was treated for complaints of right lower back pain
of several days duration. According to the veteran, he
slipped approximately four days ago while working on his car
and "wrenched" his back. The physical examination of the
veteran's back showed tenderness to palpation in the right
lower paraspinous muscles. The impression was right lower
back pain caused by muscle strain.
In January 2003, the RO received VAMC outpatient treatment
records, from October 2002 to January 2003. The records
reflect that in October 2002, it was noted that the veteran
had complaints of back and neck pain from his military
service. It was reported that x-rays of the veteran's
cervical spine showed degenerative disc disease of the
cervical spine at C4 and C5. The records also include a
computerized list of the veteran's medical problems, dated in
January 2003. The January 2003 list includes degeneration of
intervertebral disc; next to the diagnosis, the date
"October 2002" is listed.
In April 2006, a hearing was conducted at the RO. At that
time, the veteran testified that during service, right before
his discharge, he was assaulted and thrown down some steps.
According to the veteran, he was also punched in the back
which caused him to subsequently developed chronic back pain.
The veteran denied that at that time of the assault, he was
absent without leave (AWOL). He indicated that he had been
treated for degenerative disc disease of his lumbar spine
since approximately 1999. The veteran stated that prior to
1999, he had received treatment at a clinic, but that those
records no longer existed.
III. Analysis
Service connection may be established for disability
resulting from personal injury suffered or disease contracted
in line of duty, or for aggravation of a pre-existing injury
suffered or disease contracted in line of duty. 38 U.S.C.A.
§§ 1110, 1131; 38 C.F.R. § 3.303. Direct service connection
requires a finding that there is a current disability that
has a definite relationship with an injury or disease or some
other manifestation of the disability during service.
Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v.
Principi, 3 Vet. App. 542, 548 (1992).
Service connection may also be granted on the basis of a
post-service initial diagnosis of a disease, where the
physician relates the current condition to the period of
service. See Cosman v. Principi, 3 Vet. App. 503, 505
(1992). In such instances, a grant of service connection is
warranted only when "all of the evidence, including that
pertinent to service, establishes that the disease was
incurred during service." 38 C.F.R. § 3.303(d).
Alternatively, under 38 C.F.R. § 3.303(b), service connection
may be awarded for a "chronic" condition when (1) a chronic
disease manifests itself and is identified as such in
service, or within the presumptive period under 38 C.F.R. §
3.307, and the veteran presently has the same condition; or
(2) a disease manifests itself during service, or during the
presumptive period, but is not identified until later, and
there is a showing of continuity of related symptomatology
after discharge, and medical evidence relates that
symptomatology to the veteran's present condition. Savage v.
Gober, 10 Vet. App. 488, 495-98 (1997).
For certain chronic disorders, including arthritis, service
connection may be granted if the disease becomes manifest to
a compensable degree within one year following separation
from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R.
§§ 3.307, 3.309.
In the instant case, the veteran maintains that during
service, he was assaulted and thrown down some steps. He
also contends that he was punched in the back at the time of
the assault. In this regard, the veteran's service medical
records show that according to a Report of Investigation,
dated in May 1975, the veteran was AWOL and highly
intoxicated when he was allegedly kicked and suffered a
contusion to the right lateral ribs. According to the
report, the injury that the veteran received was a direct
result of his misconduct and was not in the line of duty.
However, even assuming, without conceding, that the veteran
was not intoxicated at the time of the in-service injury and,
therefore, in the line of duty, and finding that he was in
fact hit in the back (see Sworn Statement from Mr. J.P.,
dated in May 1975, where Mr. P. reported that he witnessed a
man hit the veteran in the small of the back at the time of
the alleged assault), there is no competent medical evidence
of record which shows a nexus between any current back
disability or pathology involving any part of the spine and
the in-service incident in question.
Turning first to the question of whether the veteran has a
current back disability, the Board notes that most of the
medical evidence of record shows treatment for back pain.
The Board observes that symptoms alone, such as pain, without
a finding of an underlying disorder, cannot be service-
connected. See Sanchez-Benitez v Principi, 259 F.3d 1356
(Fed. Cir. 2001). In this regard, the Board notes that x-
rays taken at the time of the veteran's October 1997 VA
examination were specifically reported to be negative of the
thoracic and lumbar spine. However, VAMC outpatient
treatment records include a computerized problem list of the
veteran's problems, which includes degeneration of
intervertebral disk; next to the diagnosis, the date
"October 2002" is listed. It is not clear which segment or
segments of the spine are involved but, in any event, there
is no competent medical evidence of record linking arthritis
or disc disease of any part of the spine to service or to any
incident of service, including injuries sustained in an
altercation 30 years earlier.
In this case, the veteran's service medical records are
negative for any evidence of a back disability, to include
arthritis of the lumbar spine, and, as previously stated, x-
rays taken in October 1997 were negative of the veteran's
thoracic and lumbar spine. Thus, the first evidence of the
veteran's claimed arthritis of the lumbar spine is in October
2002, over 27 years after his separation from the military.
In this regard, the Board may consider in its assessment of a
service connection claim the passage of a lengthy period of
time wherein the veteran has not been diagnosed with the
malady at issue. See Maxson v. West, 12 Vet. App. 453, 459
(1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333
(Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d
1335, 1358 (Feb. Cir. 2002) ["negative evidence" could be
considered in weighing the evidence]. Given that the first
medical evidence of the veteran's back disability is over 27
years after his separation from the military, an absence of
relevant evidence for such duration weighs against the
veteran's claim of direct service connection. Maxson, supra.
As to the veteran's neck disability, the evidence of record
shows that he has been diagnosed with degenerative disc
disease of the cervical spine at C4 and C5. It is unclear
whether the veteran specifically contends that his neck was
injured at the time of his alleged in-service assault, or,
rather, whether he maintains that the current neck disability
is secondary to the current back disability. Regardless, the
veteran's service medical records are negative for any
complaints or findings of a neck disability, to include
degenerative disc disease of the cervical spine. In
addition, upon a review of the June 1975 Report of
Investigation and the related Sworn Statements, there is no
reference to a neck injury at the time of the veteran's
alleged assault. The record reveals that the veteran did not
receive a diagnosis of degenerative disc disease of the
cervical spine until 2002 or over 27 years after the
veteran's separation from service. In addition, there is no
competent medical evidence of record linking the veteran's
degenerative disc disease of his cervical spine to his period
of active military service.
As to any claim for service connection for a disability of
the spine secondary to a back disability, the Board must find
that, since service connection for a back disability is not
in effect, such a claim for secondary service connection
under 38 C.F.R. § 3.310 must be denied as a matter of law.
Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).
In the instant case, the Board notes that the only evidence
of record supporting the veteran's claim is his own lay
opinion that he currently has residuals of an injury to the
neck and back that occurred while on active duty, to
specifically include a back disability, diagnosed as
degeneration of the lumbar spine, and a neck disability,
diagnosed as degenerative disc disease of the cervical spine.
The veteran is competent as a layperson to report that on
which he has personal knowledge. See Layno v. Brown, 6 Vet.
App. 465, 470 (1994). While a layperson is competent to
provide evidence on the occurrence of observable symptoms
during and following service, such a layperson is not
competent to make a medical diagnosis or render a medical
opinion, which relates a medical disorder to a specific
cause. Espiritu v. Derwinski, 2 Vet. App. 492, 494-495
(1992). There is no evidence of record indicating that the
veteran has specialized medical training so as to be
competent to render a medical opinion.
In reaching this decision, the Board considered the doctrine
of reasonable doubt. However, as the preponderance of the
evidence is against the veteran's claim, the doctrine is not
for application. 38 U.S.C.A. § 5107(b); Ortiz v. Principi,
274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the
benefit of the doubt rule is inapplicable when the
preponderance of the evidence is found to be against the
claimant"); Gilbert v. Derwinski, 7 Vet. App. 49 (1990).
ORDER
Service connection for the residuals of an injury to the
spine, to include degenerative joint and disc disease of the
lumbar spine and degenerative disc disease of the cervical
spine, is denied.
____________________________________________
R. F. WILLIAMS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs